2017 Harvest

Monday, November 24, 2014

In July of this year, the Registrar of Trade-Marks in Canada dismissed oppositions filed by the Dairy Farmers of Canada against the proposed registration of trade-marks for "Monster Milk" and "Monster Mlk". The registrations were requested by Cytosport, Inc. for a product described as: "Dietary and nutritional supplements for use in athletic training, namely for improving body strength and building muscle, excluding ready to drink beverages."

Dairy Farmers of Canada argued that the proposed trade-marks "whether depicted, written or sounded, are deceptively misdescriptive in the English language of the character or quality of the [products] in association with which they are proposed to be used. Indeed, when depicted, written or sounded, the average consumer is likely to believe that the [products] are made of 'real milk' or contain 'real milk'."

The applicant, Cytosport, Inc., submitted that the term "milk" has a number of definitions that make it "clear that the work 'milk' could mean many different things and would not, in the mind of an average consumer, necessarily refer to cow's milk."

The Registrar concluded that the trade-marks were registrable: "The work MILK (or MLK) is only one word in a composite mark. The combination of the word MONSTER with the word MILK (or MLK) is unusual. Aside from the word MILK (or MLK) that may suggest the character of the dietary and nutritional supplements, there remains the distinctive portion MONSTER. The word MILK (or MLK) is no more dominant than the word MONSTER. The combination of MONSTER and MILK (or MLK) does not create a trade-mark that can be viewed as a whole as descriptive of the character or quality of the dietary and nutritional supplements. As the first portion of the test is not met, the [trade-marks] cannot be found misdescriptive."

Friday, November 21, 2014

Justice Schwann of the Court of Queen's Bench for Saskatchewan opened her recent decision in a farm estate case as follows: "At issue in this case are the legal ramifications flowing from a gratuitous gift of land from an elderly parent to an adult child, and the parent's subsequent desire to revoke that gift." An elderly mother transferred a joint tenancy interest in the family farm to her stepson shortly before she left to live in an assisted living home, but a year later brought a court action to have the transfer set aside. She died a few years after that before the action was decided - it was continued by her estate. Upon the mother's death, the farm passed to the stepson as the surviving joint tenant.

Several grounds for setting aside the original transfer were proposed to the Court: 1) undue influence of the stepson over the mother; 2) the absence of independent legal advice; 3) breach of fiduciary relationship; 4) failure of consideration; and, 5) presumption of resulting trust.

Justice Schwann determined that the mother had gifted the interest in her farm property by exercise of free will - she was not unduly influenced by her stepson. She also found that the mother had not received adequate independent legal advice about the transfer, but this was not in and of itself a reason to overturn the gift. Justice Schwann did not find that the lack of independent legal advice meant that the stepson had dominated the mother's free will. She also found that there was no fiduciary relationship, that no consideration (i.e. quid pro quo) was required for the gift, and that no resulting trust was established. The action by the estate was dismissed in its entirety.

Monday, November 10, 2014

The applicant wind farm developer (NextEra Energy Canada ULC) sought judicial review of two municipal permitting by-laws that prevented it from proceeding with the construction of a project; in order to complete the development, the applicant said that it required permits from the Municipality of West Grey. The Divisional Court hearing the application noted: "The application raises the question of when and how a municipal by-law or policy may frustrate the purpose of a provincial legislative instrument. The factual backdrop for this legal question is the ongoing renewable energy revolution in Ontario that was ushered in by the Green Energy Act, S.O. 2009, c. 12. This revolution has spawned much litigation, particularly around wind energy projects."

The applicant received the Renewable Energy Approval (REA) from the Ontario Ministry of the Environment for its 14-turbine project in January, 2014. However, the applicant would also need "entrance permits" to connect access roads on private lands to the public highways within the municipality, as well as "oversize/overweight haulage permits" to allow for the conveyance of large and heavy project materials by truck along public highways. The municipality declined to grant the required permits, in part on the basis of changes it had made to its by-laws.

The applicant argued to the Divisional Court that it holds a valid REA from the province and that, since the municpal by-laws are in direct conflict with the REA, the by-laws are inoperative to the extent of the conflict (under Section 14(1) of the Municipal Act, 2001). The Court noted that a municipality can only exercise its powers by by-law, and the Municipal Act, 2001 provides that a by-law cannot frustrate the purpose of a provincial or federal Act, regulation or instrument.

Based on the Court's interpretation of the REA, it found that the municipality's permitting by-laws did prevent the project from being built. Therefore, the by-laws frustrated the purpose of the REA and must be held inoperable, but only to the extent of the conflict with the REA.

However, the Divisional Court did not accept the applicant's alternative argument that the municipality had acted in bad faith in refusing to grant the required permits. As the Court stated, "The Municipality is a democratic body accountable to its constituents. It has a broad legislative discretion to enact by-laws governing issues that regulate daily life and the built infrastructure within its jurisdiction ... Council's call for a moratorium on wind energy projects in Ontario and its declaration that it is an "unwilling host" for such projects are not acts that, in and of themselves, support a finding of bad faith."

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John D. Goudy, Lawyer

John is a litigator whose practice is focused in the areas of commercial and environmental litigation, expropriation law, energy regulation, and regulatory offences. He is particularly interested in agricultural issues and the regulation of agricultural land use, and lives and works on his family’s cash crop farm north of London, Ontario with his wife and three kids.

ACI Published Author

Law of the Lands provides legal information of interest to landowners. If you require legal advice about your particular situation, please click on John's profile for contact information or visit scottpetrie.com.